Friday, March 16, 2012

A Republican Blind Spot Coming Up Next Week- Medical Malpractice Reform ( Federalism )

I really don't think that to be a American political "conservative" ( which has many factions) one has to be a devoted Federalist in all cases.

But Federalism does find a natural home in the conservative movement because in many cases Liberals on the whole find the whole notion antiquated. Speak about Federalism ,and most Liberals will say it's code for State Rights which is of course in their view code for the ole days when Southern States could suppress the rights of black citizens. It's a disgusting counter argument for sure to couch objections to a position by suggesting your opponent has evil intent.

The problem is that many conservatives that advocate Federalism are not very consistent at it at times. That does not mean one should not listen to some conservatives on Federalist concerns. Everyone after all does have blind spots. Heck even I do though this seems like a huge deal to have a blindspot about Further politics is the art of the possible , and sometimes that means playing to the home crowd on a variety of issues.

A big example of this inconsistency is coming up in Congress soon. The Volokh Conspiracy has Federalism and Tort Reform Revisited. It deals with the fact that there will be Republican bill restricting state medical malpractice lawsuits next week. If there was an area of State power this seems to be it.

One irony is that trial lawyers , who are not all liberals by any means ,but whose leadership generally is locked at the hip with the Democrat party is in a bad position. Their party advocated pretty much nationalizing Health Care. If "Obama Care" is not overturned or repealed the argument that Medical Malpractice rewards is not a Federal Concern in a practical sense will get less and less currency. I truly wonder if they have thought that out?

But let us live in a World where the affordable care act is overturned or repealed. It does seem inconsistent that this is a area where Federal Power should go.

The danger of course for Conservatives is this is a double edge sword. I try to explain this to folks that support a National Right To Work act. When the other party gets in control they can just be as oppressive and reverse the gains and do their thing. For instance if a National Right to Work Act is ok then why not a National Closed Shop Act.

In this case one could see a National Plaintiff Equitable Relief Act that would be anti defense bar. Again once you exercise the Federal Power to "reign in Malpractice torts" then what's to stop it from being used elsewhere. Further of course it again is just another precedent that the Commerce Clause really has not limits is it not?

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